Lowoton & another v Lorogoi & 4 others; Kamario & 3 others (Interested Parties) (Environment and Land Case 176 of 2016) [2025] KEELC 3175 (KLR)
The bottom line
#A Kenyan court refused to strike out illegible documents from evidence, confirming that such defects affect how much weight documents carry, not whether they can be used.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the application is merited
Key legal issues
#Whether illegible photocopies certified by an advocate other than the maker should be expunged from the record
The application fails; illegibility and irregular certification affect the weight and sufficiency of the documents, not their admissibility, and do not justify expungement.
The court set out four stages of documentary proof: filing, production at hearing, admission as an exhibit, and proof of contents. Once admitted (here by consent, subject to cross-examination), challenges go to weight, not expungement. Certification of private documents by a non-maker is ineffective, but that defect also bears on weight. Since KANU documents are private, Section 80 certification rules do not apply.
Whether the impugned documents are public or private documents
They are private documents because KANU, though a political party, is a private entity limited to members.
The nature of a document depends on its maker. KANU is a private entity; a document it issued, while in its custody or given to a private individual, remains private. Accordingly the certified-copy regime in Section 80 of the Evidence Act for public documents is inapplicable, and certification of private documents is not contemplated by that provision.
Legal principles established
#- A document already admitted in evidence cannot be expunged for mere illegibility; illegibility goes only to the weight and sufficiency of proof of its contents.
- KANU is a private entity; documents issued by it are private documents not subject to the certification regime for public documents under Section 80 of the Evidence Act.
- A private document ought to be certified only by its maker or the office/institution that made it; certification by a stranger is of no effect but is not a ground for expungement.
Court orders
#- 1.The application dated 31st January, 2024 is dismissed with no order as to costs
- 2.The Court proceeds to conclude preparation of the judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 2 of the Civil Procedure Rules
Relief refused
#Expungement of the 1st Interested Party's list of documents (Exhibits 2(a) and 2(b))
Illegibility goes to weight and proof of contents, not admissibility; admitted by consent and subject to cross-examination
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The evidence cannot be expunged by mere illegibility. The weight to be attached to the document is what is in issue. Thus, the contents can only be expressed as being insuficient for proof.
A document ought to be certified by only the maker or by the ofice/ institution that made it as a true copy of the original.
I find that the application dated 31st January, 2024 is without merit. It is therefore dismissed with no order as to costs. This Court proceeds to conclude the preparation of the judgment accordingly.
Issues in the judgment
#The judgment's own case number and station are not stated in the excerpt; only the date of delivery appears.
The citationTreatment value 'referred to' for Lwangu v Ndote [2021] is not a standard controlled value but best reflects the court's use of that ruling as internal reference within the Sofie Feis Caroline Lwangu quote.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lowoton & another v Lorogoi & 4 others; Kamario & 3 others (Interested Parties) (Environment and Land Case 176 of 2016) [2025] KEELC 3175 (KLR)", Case Analysis (2025). Not stated in the excerpt (Environment & Land Case; underlying suit referenced as Environment & Land Case 79 of 2010 in cited authority only). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3175/eng@2025-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.